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Employment law

separation notices

In some states (such as Georgia and Tennessee) an employer is required to provide an employee with a written separation notice when the employee’s employment ends—whether the employee is fired, laid off, or quits. In states in which a separation notice is required, it is often a one-page form document that is available on the state’s department of labor website.

A separation notice may be relevant when a former employee is applying for unemployment benefits or when a former employer is defending against a wrongful termination or discrimination claim. Although the employment of most employees in most states is at-will, an employer cannot fire or terminate an employee for an illegal or discriminatory reason (age, sex, race, religion, etc.).

For these reasons an employer should be familiar with the applicable law and may want to consult a lawyer when completing a separation notice or responding to a request for a separation notice.

In Texas, there is no state statute that requires employers to provide a written separation notice to employees when their employment ends, regardless of whether the termination is due to firing, layoffs, or resignation. Texas follows the at-will employment doctrine, meaning that either the employer or the employee can end the employment relationship at any time for any legal reason, barring any illegal or discriminatory reasons such as age, sex, race, religion, etc. While a separation notice is not mandated by Texas law, it can still be a good practice for employers to provide one, as it can be useful for the employee when applying for unemployment benefits and can serve as documentation for the employer in the event of a wrongful termination or discrimination claim. Employers in Texas who have questions about best practices or legal implications of termination procedures may want to consult with an attorney for guidance.


Texas Statutes & Rules

Texas Labor Code, Section 207.044 - Information to Department; Penalty
This statute is relevant because it outlines the employer's responsibility to provide information to the Texas Workforce Commission (TWC) when an employee's employment ends, which may include separation information.

Under Texas Labor Code, Section 207.044, an employer is required to provide the TWC with information relating to the termination of an employee's employment when requested. This information must be provided within 14 days after the date of the TWC's request. Failure to provide the requested information within the specified time frame may result in a penalty. The information provided is used to determine an individual's entitlement to unemployment benefits. While this statute does not specifically mandate a written separation notice, it does require employers to furnish necessary information regarding the separation.

Texas Workforce Commission: Responding to a Notice of Application for Unemployment Benefits
This guideline is relevant as it provides instructions for employers on how to respond to notices from the TWC regarding an employee's application for unemployment benefits, which is related to the separation notice process.

When an employee files a claim for unemployment benefits, the TWC sends a 'Notice of Application for Unemployment Benefits' to the last employing unit. The employer must respond to this notice within 14 days to provide information about the employee's separation. The response can affect the former employee's eligibility for benefits and the employer's tax rate. The employer should provide clear and detailed information about the reason for the employee's separation, including whether the employee quit, was laid off, or was discharged, and the specific circumstances involved. This process serves a similar purpose to a separation notice in that it documents the reasons for an employee's separation from employment.

Texas Labor Code, Section 61.014 - Payment of Wages on Termination of Employment
This statute is relevant because it addresses the employer's obligations regarding the final payment of wages upon termination, which is often a related concern when employment ends.

According to Texas Labor Code, Section 61.014, an employer must pay an employee who is involuntarily terminated or laid off all wages due not later than the sixth day after the date the employee is discharged. For an employee who leaves employment voluntarily, the employer must pay the wages on the next regularly scheduled payday. While this statute does not require a separation notice, it is important for employers to comply with these requirements to avoid potential disputes or claims related to the termination of employment.

Texas Workforce Commission: Chargeback and Tax Rate Information
This information is relevant as it explains how an employer's response to a separation can affect their tax rate, which is an important consideration when dealing with the end of an employee's employment.

The TWC evaluates the reasons for an employee's separation when determining whether the employer's tax rate will be affected. If an employee was separated for a reason that disqualifies them from receiving unemployment benefits, such as misconduct, the employer may not be charged for the benefits. However, if the employee was laid off due to a lack of work or other non-disqualifying reason, the employer's account may be charged. Properly documenting and responding to the TWC regarding separations can help manage an employer's tax rate and potential chargebacks.

Federal Statutes & Rules

Civil Rights Act of 1964 - Title VII
This federal statute is relevant because it prohibits employment discrimination based on race, color, religion, sex, and national origin, which are factors that cannot be cited as reasons for termination in a separation notice.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. This includes hiring, firing, promotion, layoff, training, benefits, and any other term or condition of employment. An employer is also prohibited from retaliating against an individual for opposing employment practices that discriminate based on these factors, or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Age Discrimination in Employment Act of 1967 (ADEA)
This statute is relevant as it protects employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment.

The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination. It applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations. The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.

Americans with Disabilities Act of 1990 (ADA)
This statute is relevant because it prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, and must be considered when issuing a separation notice.

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. The ADA provides civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications.

Family and Medical Leave Act of 1993 (FMLA)
This statute is relevant as it requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons, which may be pertinent to the reasons for separation.

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to twelve workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth; for the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; for the care of the employee’s spouse, child, or parent who has a serious health condition; for a serious health condition that makes the employee unable to perform the essential functions of his or her job; and for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

Fair Labor Standards Act (FLSA)
This statute is relevant as it establishes minimum wage, overtime pay eligibility, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments, which may impact the terms of separation.

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than the federal minimum wage and overtime pay at a rate not less than one and one-half times the regular rate of pay required after 40 hours of work in a workweek. FLSA also regulates the employment of minors under the age of 18, restricting the hours they may work and the types of jobs they may perform. Employers must keep certain records for each non-exempt worker. The FLSA does not require severance pay, sick leave, vacations, or holidays. These are typically matters of agreement between an employer and an employee (or the employee's representative).

Equal Pay Act of 1963
This statute is relevant as it addresses wage disparity based on sex, which could be a factor in wrongful termination or discrimination claims related to a separation notice.

The Equal Pay Act (EPA) requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.